After the GOP lost the House to the Democrats, the flood of “common sense” progressive proposals was inevitable. Each week, Liberty Nation digs up the little gems hidden among the legislative slop that can make a huge difference to your freedom.
Taking It Easy?
Maybe it was anticipation of the Mueller report. Perhaps it was simply about taking it easy on spring break. Whatever the reason, Congress didn’t do much in the way of legislating last week. Tuesday and Thursday saw the only bills introduced in the House – 30 and 26, respectively; none was proposed to the Senate or passed by either body.
One congressman, however, did have the rights of the people in mind. Rep. Tom Emmer, the Republican from Minnesota’s 6th District, introduced H.R. 1817 on Tuesday. With his “Firearms Due Process Protection Act,” Emmer hopes to hold the National Instant Criminal Background Check System (NICS) accountable for its mistakes.
A Flawed System
In the Code, 18 U.S.C., Section 925A offers a “remedy” for those erroneously denied a firearm. According to the law as currently written, anyone unjustly prohibited may “bring action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.”
But aside from granting the court the discretion to allow the prevailing party a reasonable attorney’s fee, that’s all there is. All good and well, but without an enforceable time limit or an obligation to report the results, it doesn’t guarantee much, does it?
Protecting Due Process
“Law-abiding gun purchasers should not be deprived of their Constitutional right to due process,” Emmer said in a statement. “Above all, citizens must always have recourse when denied a fundamental right.”
His bill would strike the final sentence of the law as written – the one allowing for reasonable attorney’s fees – and replace it with two additional subsections. Subsection (b) establishes procedural rules. Once an appeal is filed, the court would have 30 days to hold a hearing and hold the respondent responsible for providing “clear and convincing evidence” as proof that the individual is ineligible to buy a gun.
Subsection (c), REMEDIES, orders the court to assess reasonable attorney’s fees and any other litigation costs against the respondent should the prohibited person win his or her appeal. One has three paths to prevail in such an appeal:
“(A) a judicial order;
“(B) an enforceable written agreement or consent decree; or
“(C) a voluntary or unilateral change in position by the United States, if the complainant’s claim is not insubstantial.”
An Obligation to Transparency
Currently, Congress and the public have no way of knowing how many people are wrongfully denied their rights, how many of them appeal, what becomes of those appeals, or how long it takes each time. Section 3 of the bill requires the director of the FBI to submit annual reports to the Committee on the Judiciary for both the House and the Senate to rectify that. The report must include the total number of challenges to the accuracy of the record, how many of them are processed to final disposition – including how many resulted in reversals by NICS as well as the number that weren’t reversed. Finally, the report must include the average length of time needed to complete the process.
Sense of the Congress
The final part of the Firearms Due Process Protection Act, Section 4, establishes a “sense of the Congress” making four assertions:
“(1) The right of the people to keep and bear arms is a fundamental component of self-government, self-defense, and the preservation of individual liberty;
“(2) deprivation of the constitutional right to bear arms requires due process under the Fifth and Fourteenth Amendments to the Constitution of the United States;
“(3) ignoring appeals of determinations made by the National Instant Criminal Background Check System (NICS) violates due process; and
“(4) NICS should have the burden of showing a valid reason for the denial of this constitutional right.”
No. 1 seems a reasonable interpretation of the Second Amendment, especially given the words of early leaders of the Republic.
Some might argue, however, that the absolute wording of the operative clause of the Second Amendment – “the rights of the people to keep and bear arms shall not be infringed” – does not allow the stretching of point No. 2 quite as far as the government currently pushes it. Depriving people of the right to keep weapons while incarcerated seems reasonable, of course. It is, after all, difficult to force those in prison to sit out their sentence if they can take guns to jail with them. But does the idea of due process allow for the existence of NICS or the prohibition of any group of people from possessing firearms for life? Until 1968 – only half a century ago and 179 years after the U.S. government began and the Bill of Rights was ratified – it did not.
Regardless of the constitutionality of NICS and gun control in general, point No. 3 also makes sense. Whichever side of that argument one falls on, ignoring appeals in any area of the law is antithetical to due process.
Even for those who believe it is constitutional to establish groups of “prohibited persons” to exclude from some right generally considered fundamental to humanity, the fourth point should be as reasonable as the third. Like ignoring appeals, disenfranchising someone of a constitutionally recognized right with no burden of proof makes a joke of due process.
A Senseless Congress
Of course, this is absolutely not the sense of Congress. The Senate, perhaps, but definitely not the House, where this bill has been introduced and likely will die. With just over a two-thirds majority, House Democrats – most of whom absolutely do not agree with Emmer – probably would not even allow a vote on this.
Tune in next week for more highlights – or lowlights – from Congress.